In the interest of C.S., a child--Appeal from 20th District Court of Milam County

Opinion filed March 22, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00370-CV

__________

IN THE INTEREST OF C.S., A CHILD

On Appeal from the 20th District Court

Milam County, Texas

Trial Court Cause No. AD00022

M E M O R A N D U M O P I N I O N

Appellant, Rebecca Smith, is the biological mother of C.S., a child. Appellees, Alicia Smith and Horace Smith, filed an action seeking to terminate the parental rights of C.S.=s biological parents. Appellees also sought an order permitting them to adopt C.S. C.S.=s biological father, Gerry Wayne Smith, filed an affidavit wherein he voluntarily relinquished his parental rights.[1] Appellant filed an answer wherein she made the following request: AAt this time, I am requesting a court appointed Attorney to protect the best interest for [C.S.], my daughter and Rebecca Smith her biological mother.@ The record reflects that the case proceeded to trial without appellant=s participation. The trial court entered an order that terminated the parental rights of appellant and Gerry Wayne Smith and granted appellees= request to adopt C.S. In her sole issue on appeal, appellant contends that the trial court erred in denying her request for appointed counsel. We affirm.

Analysis

We note at the outset that appellant is prosecuting this appeal pro se. We further note that there is no constitutional right to appointed counsel in every parental termination proceeding. Lassiter v. Dep=t of Soc. Servs., 452 U.S. 18, 27-32 (1981). Rather, an indigent parent=s constitutional right to counsel under the Fourteenth Amendment=s Due Process Clause must be made on a case-by-case basis. Id.

Appellant asserts that the trial court had a mandatory duty to appoint counsel for her under Tex. Fam. Code Ann. ' 107.13(a)(1) (Vernon Supp. 2006). This section provides as follows:

(a) In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of:

(1) an indigent parent of the child who responds in opposition to the termination (emphasis added).

By its express terms, this statute does not apply to this appeal because the termination suit was not filed by a governmental entity. Instead, Tex. Fam. Code Ann. ' 107.021 (Vernon Supp. 2006) governs this appeal.

Section 107.021 provides for the appointment of counsel in suits seeking the termination of the parent-child relationship that are not filed by a governmental entity. However, the statute speaks to the appointment of an amicus attorney, an attorney ad litem, or a guardian ad litem. In determining whether to make an appointment under this section, the court is directed to give due consideration to the ability of the parties to pay reasonable fees to the appointee and to balance the child=s interests against the costs to the parties that would result from an appointment.

A trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When reviewing matters committed to a trial court=s discretion, an appellate court may not substitute its own judgment for the trial court=s judgment. Walkerv. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Nor may a reviewing court set aside the trial court=s determination unless it is clear from the record that the trial court could only reach one decision. Id. at 840. We conclude that the trial court did not abuse its discretion by not granting appellant=s request for appointed counsel. The record reflects that appellant simply furnished the court with a written request for appointed counsel. She did not claim to be indigent in her request, and she did not submit any proof with respect to her ability to pay reasonable fees to the appointee. Appellant=s sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 22, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Gerry Wayne Smith is not a party to this appeal.